Thursday, January 29, 2015

Ala. Supreme Says Ignore Fed. Court—'Gay Marriage'

In a letter to Alabama Gov. Robert Bentley, Alabama Supreme Court Chief Justice Roy Moore provided his legal review of U.S. District Judge Callie V.S."Ginny" Granade's ruling that the one-man-one-woman marriage amendment to the Alabama Constitution (passed by 81% of the state's voters in 2006) violated the U.S. Constitution. Justice Moore advised Gov. Bentley that state courts need NOT abide by Judge Granade's ruling because it violates the state’s constitution — only such a ruling by the U.S. Supreme Court would be valid; therefore, probate judges are NOT to begin issuing same-sex "marriage" licenses.

In the letter [to Gov. Bentley], Moore claims the District Court's ruling "raised serious, legitimate concerns about the propriety of federal court jurisdiction" and he even goes as far as to assert the ruling was an "unlawful opinion" and act of "tyranny."

On Friday, U.S. District Judge Ginny Granade ruled Alabama's law banning same-sex marriage was unconstitutional and actually harmed the children its supporters attempted to frame their defense around.

Within a day of sending the letter to Bentley, civil rights group The Southern Poverty Law Center [SPLC] filed an ethics complaint against Moore with the Judicial Inquiry Commission of Alabama.

Moore said his letter to the governor was not public comment on the case. He said as chief justice he is also the top administrator of the state court system.

"My duty as chief justice and administrative head of the court system is to enlighten those courts under my authority as to what the law is in this matter," Moore said.

"And the law is clearly that federal district courts and appellate courts are only persuasive authority to the courts of this state because the judges of state courts are equally competent to interpret federal law."

"Many states have just caved to it," Moore said. "They absolutely have. When a federal district judge rules, that's it. But they didn't have to.

"And I'm saying we don't have to. And it's in accordance with the law. It's not defiance."

Moore's letter to Alabama Gov. Robert Bentley (R) came a few days after a federal judge in the state ruled that Alabama's same-sex marriage ban violates the constitutional rights of gay citizens. The ruling in Alabama is currently stayed for two weeks to allow the 11th U.S. Circuit Court of Appeals to decide whether the marriages should continue to be delayed until the U.S. Supreme Court hears arguments on the constitutionality of state same-sex marriage bans later this year.

While he didn't spell out exactly how he planned to defy the ruling of a federal court, Moore said he would "continue to recognize the Alabama Constitution," which has an amendment that bans same-sex marriage. Moore also pointed out rulings from the Supreme Court of Alabama -- from 1870 and 1904 -- that called marriage a "divine institution" and a "sacred relation."

Moore even quoted a U.S. Supreme Court ruling from 1885 (which was later quoted in a 1908 Supreme Court case) that he said indicated the court recognized the importance of marriage and family. He said the "destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses" of the Constitution. He said that 44 federal courts have "imposed by judicial fiat same-sex marriages in 21 states of the union."

In the letter, Moore wrote, “I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them. I would advise them that the issuance of such licenses would be in defiance of the laws and constitution of Alabama.”

A constitutional law expert from the University of Alabama School of Law, Ronald Krotoszynski, said that the letter from Moore will carry very little weight. The reason for this is that federal constitutional law overrides that of the individual state constitutions.

“There is no credible legal argument that an order from a federal judge with jurisdiction over a matter isn’t binding on a state government,” he said.

Governor Bentley has said that he is in support of the state’s gay marriage ban and will fight to uphold it.

"The people of Alabama elected me to uphold our state Constitution, and when I took the oath of office last week, that is what I promised to do," the governor said.

"The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As governor, I must uphold the Constitution. I am disappointed in Friday's ruling, and I will continue to oppose this ruling. The Federal government must not infringe on the rights of states."

Alabama's government has opted to continue defending the constitutional amendment, filing a request to grant a stay until the US Supreme Court renders a decision on the matter.

Some observers, reported Fox News, believe that the ruling, even if it takes effect, may have a more limited scope than assumed.

"The Alabama Probate Judges' Association maintains that Friday's ruling applies only to the parties in that case, and that it doesn't require judges to issue marriage licenses to other same-sex couples," noted Fox [News].

Filed Wednesday, the SPLC's complaint was brought before the Judicial Inquiry Commission of Alabama and alleged that "Moore's actions violate Alabama's Canons of Judicial Ethics in numerous and significant regards."

. . . Rep. Patricia Todd, Alabama's only openly gay legislator, threatened to reveal which "pro-family value" politicians were having extramarital affairs if they continued criticizing gay marriage as immoral.

"I'm sick of the hypocrisy. If you start disparaging my [sexually deviant] community, and I know that you are not exactly the family values person that you put yourself out to be, well, then, beware," Todd, D-Birmingham, said.

Moore apparently was not worried.

Todd, who first made her threat on Facebook, has yet to follow through, and has acknowledged that to do so risked slander.

The recent ruling of Judge Callie Granade of the United States District Court for the Southern District of Alabama has raised serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment. Art, I, § 36.03, Ala, Const. of 1901.

As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage The people of this state have specifically recognized in our Constitution that marriage is “[a] sacred covenant, solemnized between a man and a woman”; that “[a] marriage contracted between individuals of the same sex is invalid in this state”; and that “[al union replicating marriage of or between persons of the same sex. . . shall be considered and treated in all respects as having no legal force or effect in this state.” Art. I, § 36.03(c), (b) & (g), Ala. Const. of 1901.

The Supreme Court of Alabama has likewise described marriage as “a divine institution,” imposing upon the parties “higher moral and religious obligations than those imposed by any mere human institution or government.” Hughes v. Hughes, 44 Ala. 698, 703 (1870). In Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 639 (1904), this Court again referred to marriage as a sacred relation.

Even the United States Supreme Court has repeatedly recognized that the basic foundation of marriage and family upon which our Country rests is “the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.” Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (quoted in United States v. Bitty, 208 U.S. 393, 401 (1908)).

Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement,” then we must act to oppose such tyranny!

On December 26, 1825, Thomas Jefferson wrote:

I see as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers foreign and domestic and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court the doctrines of the President and the misconstructions of the constitutional compact [US, Constitution], acted on by the legislature of the federal branch, and it is but too evident that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves, all functions foreign and domestic.

Letter to William Branch Giles, December 26, 1825

Jefferson’s words precisely express my sentiments on this occasion. Our State Constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States. Nothing in the United States Constitution grants to the federal government the authority to desecrate the institution of marriage. Indeed, the Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” U.S. Const. Amend. X. An infringement upon the definition of marriage affects all that have entered into it in the past as well as all who will enter in the future.

Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses.

Proponents of same-sex marriage contend that most of the state bills are almost certainly unconstitutional. And even in conservative-dominated statehouses, the chances of passage are unclear, given disagreements within the Republican Party on whether same-sex marriage should be a priority issue. Some experts say they could face sharp rebukes from judges who have ruled in favor of same-sex marriage.

Still, the bills probably foreshadow the kinds of fights that may continue to rage even if the United States Supreme Court eventually rules that same-sex marriages must be allowed in all 50 states. This month, the Supreme Court justices agreed to hear a case that could resolve whether same-sex marriage, currently allowed in 36 states and the District of Columbia, should be the law of the land.

The Alabama Supreme Court ordered county probate judges to uphold the state ban pending a final ruling by the U.S. Supreme Court, which hears arguments in April on whether gay couples nationwide have a fundamental right to marry and whether states can ban such unions.

The all-Republican court ruled 7-1 that Alabama's 68 probate judges must stop issuing marriage licenses to gay and lesbian couples, despite a ruling by Granade that the ban is unconstitutional.

Montgomery County Probate Judge Steven Reed, a Democrat and one of the first to issue gay-marriage licenses following a January ruling by U.S. District Judge Callie Granade in Mobile, said he was duty-bound to turn gays and lesbians away again, for now. But he also suggested that he would join a new round of appeals.

Before Tuesday's ruling, 48 of the state's 67 counties were acknowledging that Alabama had become the 37th U.S. state where gays can legally wed, according to the Human Rights Campaign, which advocates for gay marriage nationwide. By Wednesday afternoon, the group couldn't find any county issuing licenses to gay and lesbian couples.

In the decision, the judges insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that. They took on not just Judge Granade’s ruling point by point but also took issue with the United States Supreme Court’s ruling striking down parts of the federal Defense of Marriage Act in 2013. The judges said marriage is a state matter, but also made a more sweeping case, maintaining that only marriage between a man and a woman “provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.”

“Government has an obvious interest in offspring and the consequences that flow from the creation of each new generation, which is only naturally possible in the opposite-sex relationship, which is the primary reason marriage between men and women is sanctioned by state law,” the court ruled.

[Chief Justice Roy] Moore abstained from voting on the Alabama Supreme Court's order this week because he said he didn't want the appearance of impropriety because of his previous public stances against gay marriage.

"I can't explain why more than 20 other states have bowed down to unlawful federal authority but Alabama is not one of them," Moore said. "A federal judge has no authority to overturn a state constitutional amendment in the face of a state court's opinion on the same matter."

Only three states have adopted same-sex marriage by referendum of the people, several state legislatures passed laws allowing it, and seven or eight state supreme courts and federal district orders in about 20 states have been issued to toss out bans and allow it.

"We applaud the Alabama Supreme Court for taking the courageous step of standing up to a blatant overreach by a federal judge and instead choosing to uphold the rule of law and the state's constitutional amendment protecting time-honored marriage," Tim Wildmon, President of American Family Association, stated in a press release.

"For far too long, we have seen errant federal judges unilaterally take the law into their own hands and strike down duly passed marriage protection provisions," Wildmon stated. "The Alabama Supreme Court has shown that it does not take kindly to one federal judge upending state law and overruling the voice of thousands of Alabama voters. We hope and pray that other courts will follow suit and uphold the law, rather than cave to orders to ignore it."